Child custody in Missouri is determined by several factors set forth in Section 452.375 of the Missouri Revised Statutes. Subsection 2 of the statute states:
The court shall determine custody in accordance with the best interests of the child. When the parties have not reached an agreement on all issues related to custody, the court shall consider all relevant factors and enter written findings of fact and conclusions of law, including, but not limited to, the following:
(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence as defined in section 455.010 has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and any other child or children for whom the parent has custodial or visitation rights, and the parent or other family or household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian. The fact that a parent sends his or her child or children to a home school, as defined in section 167.031, shall not be the sole factor that a court considers in determining custody of such child or children.
When parents are going through a contested divorce or child custody case encounter, emotions are heightened, and many issues may be raised that could affect the outcome of the case. In high-conflict cases, parents often raise safety concerns for a child when in the other parent’s physical custody. If that parent has been arrested or convicted of driving while intoxicated (or driving under the influence), that arrest or conviction can become a significant factor considered by the judge in deciding child custody.
If you have been arrested for a DWI or a DUI, you will need to understand how this could potentially affect child custody decisions that will be made during your case. A DWI or DUI arrest that occurs after the completion of your case may also have serious consequences, as the other parent may ask the court to suspend your physical custody time with your children.
What could be the impact of a prior DWI conviction?
As set forth in the statute, the primary concern addressed by the judge in a child custody case will be the best interests of the children. The judge will consider all the factors set forth in the statute, including the mental and physical health of all individuals involved as that affects the safety of the children. If you have a prior DWI conviction, this might raise concerns about your ability to provide a safe and stable home for your children.
The other parent’s attorney could argue that the conviction should be considered a sign that you have exhibited poor judgment in the past and that your poor judgment indicates that you could put your children at risk. The poor judgment argument can be made to a judge to affect the decision of whether you will share joint legal custody of your children and have the right to make decisions about issues such as education and medical care. If the arrest or conviction for DWI is closer in time to the filing of the child custody case, you would expect the other parent’s attorney to potentially argue that your recent history of alcohol (or drug) abuse prevents you from having unsupervised physical custody time with your children. Thus, your ability to share joint physical custody of your children may also be affected. A judge may also believe that it is necessary to order you from using alcohol or drugs during or immediately before your custody time or require you to pay for an alcohol monitoring device or receive substance abuse treatment.
What could be the impact of a DWI arrest after the case is over?
If you already have a child custody judgment with a parenting plan, being arrested for DWI or DUI could affect your ability to maintain those child custody rights. Regardless of the eventual outcome of the arrest, the other parent may bring the circumstances of that arrest to the court’s attention by filing a Motion for a Temporary Restraining Order and/or a Motion to Modify the prior child custody judgment. If the judge believes that your children may be at risk of harm while in your physical custody, your physical custody time could be restricted, or you could lose joint legal or joint physical custody designations.
You would expect the other parent’s attorney to assert that the arrest demonstrates your inability to provide the proper care for your children due to your current alcohol use. You would further expect the other parent’s attorney to claim that you are likely to continue drinking when the children are in your physical custody and that your behavior affects the children’s safety. Last, the other parent’s attorney would also argue that your driver’s license privileges are suspended, which affects your ability to provide transportation for your children when needed (especially in the case of an emergency when the children are in your care). After hearing testimony at a temporary restraining order hearing, a judge may decide to suspend your parenting time or have supervision present during your parenting time to ensure the children’s safety. After hearing testimony at a trial, a judge may decide to modify your parenting plan and reduce the amount of physical custody time you have with your children.
Your attorney should proactively help you take steps to address any concerns a court would have with your ability to parent following a DWI arrest. If you recognize an alcohol problem, you may want to consider enrolling in an alcohol counseling or treatment program even though you have not been ordered to do so by the court. You should also be prepared to submit to alcohol testing during and after the pendency of the case. Taking these proactive steps will demonstrate to the judge that you recognize the problem, that you are committed to remaining sober, and that you are taking steps to address any concerns the court may have about your ability to (co)parent.
Should you need the advice of an experienced divorce or child custody attorney or have questions or concerns about how an alcohol or drug-related arrest could affect your custody situation, know that we are here to help and ready to discuss those issues with you.